Ahhhh…shades of the 60’s and 70’s. If anyone is interested, these arguments have been around for a while and in his book The Brethren, Watergate reporter Bob Woodward outlines the behind-the-scenes battles of the Supreme Court during the 1960's and 1970's and provides an interesting background to the obscenity cases decided during that period. The most important case during that time was Miller v. California, which still defines obscenity today.

The Brethren describes Supreme Court "movie day" – when the law clerks and the Justices sat down to eat popcorn and see the porn films for the cases awaiting decisions. Justice Hugo Black, who served from 1937 to 1971, always refused Movie Day by saying "if I want to go see that film, I should pay my money." Justice Black and Justice William Douglas, who served from 1939 to 1975, at the time were the only two Justices who believed that speech should be entirely free of restrictions.

According to The Brethren, the law clerks that drafted the Justices' opinions created the following short hand for how their bosses decided if material was obscene:

Justice Byron White's Definition: "no erect penises, no intercourse, no oral or anal sodomy. For White, no erections and no insertions equaled no obscenity."

Justice Brennan's Definition, The Limp Dick Test: "no erections. He was willing to accept penetration as long as the pictures passed what his clerks referred to as the 'limp dick' standard. Oral sex was tolerable if there was no erection."

Justice Stewart's Definition, The Casablanca Test: " . . . I know it [obscenity/pornography] when I see it." In Casablanca, as a Navy lieutenant in World War II and watch officer for his ship, Stewart had seen his men bring back locally produced pornography. He knew the difference between that hardest of hard core and much of what came to the Court. He called it his 'Casablanca Test'."